Sixty-sixth session

The scope and application of the principle of universal jurisdiction
(Agenda item 84)

Summary of work

Background (source: A/66/100)

This item was included in the provisional agenda of the sixty-fourth session of the General Assembly, at the request of the United Republic of Tanzania (A/63/237/Rev.1). The Assembly considered the item at its sixty-fourth session (resolution 64/117).
At its sixty-fifth session, the General Assembly invited Member States and relevant observers, as appropriate, to submit information and observations on the scope and application of universal jurisdiction, including, where appropriate, information on the relevant applicable international treaties, their domestic legal rules and judicial practice, and requested the Secretary-General to prepare and submit to the Assembly, at its sixty-sixth session, a report based on such information and observations. The Assembly also decided that the Sixth Committee should continue its consideration of the item, without prejudice to the consideration of the topic and related issues in other forums of the United Nations and that a working group of the Sixth Committee should be established, at its sixty-sixth session, to undertake a thorough discussion of the scope and application of universal jurisdiction (resolution 65/33).

Consideration at the sixty-sixth session

The Sixth Committee considered the item at its 12th, 13th, 17th and 29th meetings, on 12 and 21 October, as well as on 9 November 2011 (see A/C.6/66/SR.12, 13, 17 and 29). For its consideration of the item, the Committee had before it the reports of the Secretary-General, submitted to the sixty-fifth and sixty-sixth sessions of the General Assembly as contained in documents A/65/181 and A/66/93 and Add.1.

Statements were made by the representatives of: Iran (Islamic Republic of) (on behalf of the Non-Aligned Movement), Chile (on behalf of the Rio Group), Australia (also on behalf Canada and New Zealand), Qatar (on behalf of the Arab Group), Kenya (on behalf of the African Group), Egypt, Switzerland, Norway, Guatemala, Colombia, El Salvador, Peru, Cuba, Sudan, Ethiopia, the Russian Federation, the Democratic Republic of the Congo, Swaziland, Belgium, Zambia, Venezuela, Malaysia, Algeria, Senegal, Rwanda, Argentina, Israel, the Czech Republic‎, Sri Lanka, China, South Africa, Sweden, Indonesia, Greece, Chile, the United Kingdom of Great Britain and Northern Ireland,, Finland, Burkina Faso, Kenya, Spain, Ireland, Iran (Islamic Republic of), the Netherlands, the United States of America, Brazil, Tunisia, Mozambique and the Republic of Korea. The observer delegation of the International Committee on the Red Cross also made a statement.

In their general comments, delegations took note of the report of the Secretary General and observed that they continued to follow the item with keen interest. Delegations also drew attention to their laws and practices relevant to universal jurisdiction.

Although it was recognized that the comments of States expressed in the report of the Secretary-General revealed a diversity of views, it was generally acknowledged that universal jurisdiction was an important principle, the validity of which was beyond doubt. It was noted that universal jurisdiction provided a tool to prosecute the perpetrators of certain serious crimes under international treaties. Some delegations expressed the view that it was an institution of international law of an exceptional character for the exercise of criminal jurisdiction serving to fight impunity and strengthen justice, while some other delegations observed that universal jurisdiction was a well-established principle of customary and conventional international law.

At the same time, it was also appreciated that there was controversy surrounding the principle. Some delegations noted that universal jurisdiction involved complex issues of a legal, political and diplomatic nature. Indeed, delegations expressed different views on the scope of universal jurisdiction and its application, highlighting that it was in these aspects that most concerns existed. It was also noted that the principle was viewed by some as incipient, lacking clarity in its scope and how it was applied.

Concerning the scope of the principle, delegations highlighted the importance of agreeing on a definition of universal jurisdiction and the need to distinguish it from other related concepts, such as international criminal jurisdiction, the obligation to extradite or prosecute, as well as other related principles and rules of international law. Some delegations acknowledged that universal jurisdiction contributed to the implementation of complementarily as enshrined in the Rome Statute of the International Criminal Court; it was nevertheless pointed out that it was conceptually different from the exercise of international criminal jurisdiction. It was also observed by some delegations that universal jurisdiction was linked to the obligation to extradite or prosecute (aut dedere aut judicare), while some other delegations pointed out that universal jurisdiction was conceptually different from that obligation. It was further noted that the obligation to extradite or prosecute was generally considered to derive from a treaty obligation, whereas universal jurisdiction was perceived more as an entitlement than an obligation

Concerning the related question of crimes covered by the principle, views were divergent, with delegations noting that the Working Group should also focus on this aspect. Delegations pointed to the fact that the gravity of the crimes was the common denominator for crimes over which the principle should be exercised, with some delegations mentioning genocide, crimes against humanity, war crimes and torture in that category. It was further noted that, except for the Geneva Conventions of 1949, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the United Nations Convention on the Law of Sea, it was misleading to assert that universal jurisdiction was established by treaty without express language therein. It was noted that universal jurisdiction was rooted in international humanitarian law. The 1949 Geneva Conventions provided for the mandatory universal jurisdiction over grave beaches, as well as crimes other than grave breaches. Some delegations further observed that there was no consensus on the scope of crimes to be covered by the principle beyond piracy. Delegations cautioned against an unwarranted expansion of the crimes covered by universal jurisdiction.

As regards the application of universal jurisdiction, delegations emphasized the need for the judicious and responsible application of the principle, stressing the need to avoid its abuse in practice, including its selective use as a political tool and its arbitrary or unilateral invocation. Several delegations underlined the need for specific safeguards and conditions for the assertion of universal jurisdiction to prevent any abuse. Delegations also underscored that universal jurisdiction should always be exercised in good faith and with due regard to other principles of international law. Delegations further stressed the importance of respecting principles of international law enshrined in the Charter of the United Nations, including sovereign equality of States, as well as their political independence and non-interference in the internal affairs of other States, with some delegations noting that the violation of the immunity of State officials violated the sovereignty of States.

The link between universal jurisdiction and the question of immunity of State officials, in particular heads of State and Government was particularly highlighted. The view was expressed that there was a delicate balance to be struck between the prevention of impunity and the free exercise of sovereignty by agents of the State, whereby immunity of State officials would be the exception to the applicability of jurisdiction. It was nevertheless stressed that discussions on the principle should not be taken over by discussions on immunity, given in particular that the latter, which was also implicated with respect to other bases of jurisdiction, may prejudice the Committee’s consideration of the topic.

Some delegations underlined the importance of conditions for the application of universal jurisdiction, noting that prosecution for crimes under universal jurisdiction required the consent of a governmental authority like an Attorney General and the presence of the accused person in the territory was often required. It was also generally noted that universal jurisdiction was a jurisdictional basis of last resort usually invoked in conjunction with other bases like territoriality and nationality. Some delegations also stressed the importance of the principle of legality while some other delegations underscored the relevance of international cooperation, particularly in matters of extradition and mutual assistance.

On the future consideration of the item, delegations generally acknowledged the establishment of the Working Group of the Sixth Committee on the item. Delegations also expressed their intention to engage actively in the deliberations on the item and some delegations stated that the focus of the Working Group should be on considering clear rules for the application of universal jurisdiction in order to ensure its reasonable exercise and compatibility with international law, as well as on its scope. Some other delegations suggested that the focus should be on the legal aspects of the scope and application of universal jurisdiction, indicating that the Working Group should address the question of definition as well.

Delegations expressed guarded optimism regarding the anticipated outcome of the work of the Working Group. Some advocated a cautious approach to any attempt to elaborate a new instrument on universal jurisdiction. Given the divergence of views on the matter, several delegations doubted that work of national courts could be advanced by to constrictions determined by international regulation. It was also noted that there was no need for a new regulatory mechanism for the exercise of universal jurisdiction, given that existing mechanisms should be used to deal with potential disputes. Advocating an incremental approach, it was also noted that it was premature at this stage to adopt uniform standards on the subject.

Apart from the Working Group, mention was also made of the International Law Commission. It was noted that the possibility of the Commission addressing the issue should not be precluded. It was suggested that the matter be referred to the Commission for a study on the status of universal jurisdiction in international law with the view to the Sixth Committee resuming its consideration at a later stage. The proposition was also made that the Commission be requested to study the issue bearing in mind also that the Commission’s programme of work for next year would be light. Some delegations welcomed the fact that the Commission had at its 2011 session given priority to related topics, namely, those of “Immunity of State officials from criminal jurisdiction” and “The obligation to extradite or prosecute (aut dedere aut judicare)”. Some other delegations proposed that the matter be carried forward further by the Commission in particular in the framework of work on these two topics. It was also noted by several delegations that in view of the fundamentally juridical and technical nature of the subject its examination should preferably have been entrusted to that Commission.

Action taken by the Sixth Committee

At the 29th meeting, on 9 November 2011, the representative of the Democratic Republic of the Congo introduced draft resolution A/C.6/66/L.19, entitled “The scope and application of the principle of universal jurisdiction”, on behalf of the Bureau. Operative paragraph 4 of the draft resolution was orally revised to read as follows: “4. Decides that the Working Group shall be open to all Member States and that relevant observers to the General Assembly will be invited to participate in the work of the Working Group”. At the same meeting, the Committee adopted draft resolution A/C.6/66/L/19, as orally revised, without a vote.

Under the draft resolution, the General Assembly would invite Member States and relevant observers, as appropriate, to submit information and observations before 30 April 2012 on the scope and application of universal jurisdiction, including, where appropriate, information on the relevant applicable international treaties, their domestic legal rules and judicial practice; and would further request the Secretary-General to prepare and submit to the General Assembly, at its sixty-sixth session, a report based on such information and observations. The Assembly would moreover decide that the Sixth Committee shall continue its consideration of the item, without prejudice to the consideration of the topic and related issues in other forums of the United Nations. For this purpose, a working group of the Sixth Committee would be established at the sixty-seventh session to continue to undertake a thorough discussion of the scope and application of universal jurisdiction. The Assembly would decide that the Working Group shall be open to all Member States and that relevant observers to the General Assembly be invited to participate in the work of the Working Group.

This agenda item was subsequently considered at the sixty-seventh session (2012).